Opinion
Civil Action No. 95-cv-02242-WDM-BNB.
March 28, 2006
ORDER
On January 25, 2006, I ordered the United States Marshal to seek a waiver of service from the sole remaining defendant B. Lanich, also known as Lanisch, pursuant to Fed.R.Civ.P. 4(d) or serve said defendant. The Marshal has now filed a return of service indicating his inability to serve that defendant at the last known address provided by the Bureau of Prisons. Plaintiff has never provided a suggested address.
Again based upon the complete history of this case, I find that the United States Marshal Service and the Bureau of Prisons have made reasonable — but unsuccessful — efforts to locate that defendant and that good cause to extend the time any further under Fed.R.Civ.P. 4(m) does not exist. See Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995). Accordingly, it is appropriate to dismiss this defendant without prejudice.
As is defendant's common practice, he has filed numerous motions objecting to previous orders which are now laced with personal invectives against me and Magistrate Judge Boyd N. Boland. Without going into any detail, all such self evident scandalous statements are stricken pursuant to Fed.R.Civ.P. 12(f). As to nonscandalous materials, I will not again review the legal and factual bases for my rulings and simply observe that with this order dismissing the case against defendant Lanich all defendants have been dismissed with or without prejudice. Plaintiff's various motions to vacate or reconsider my previous orders are without merit under either Rule 59(e) or 60(b) Fed.R.Civ.P. Since I agree with Magistrate Judge Boland's orders and continue to believe my previous orders were appropriate, the motions should be denied.
Plaintiff also seeks to stay proceedings while he is housed at a medical facility separate from his legal papers. Plaintiff has no entitlement to further filings in this matter and his positions on all issues have been repeatedly stated in numerous filings. Accordingly, no stay is necessary at this time. Any need for a stay in the event of an appeal should be determined in accordance with relevant circumstances, including whether he continues to be housed apart from his papers.
Finally, plaintiff has sought a preliminary injunction. Since I have decided against plaintiff on the merits he is not entitled to preliminary relief against defendants who were served.
It is therefore ordered:
1. Plaintiff's claims against defendant B. Lanich, also known as B. Lanisch, are dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m) for failure to serve;
2. Plaintiff's appeal of Magistrate Judge decisions (docket no. 411 and 416) and motions to vacate (docket nos. 404, 406 and 420) are all denied without merit and are now moot;
3. Plaintiff's motion to stay (docket no. 423) is denied;
4. Plaintiff's motion for preliminary injunction (docket no. 393) is denied; and
5. There being no remaining defendants, this case is closed.